Perspectives of evolution of legal solutions concerning entrusting by local self-government units the public tasks to perform with other entities against the background of Polish law

• Author: Wioleta Baranowska-Zajac
• Pages: 463-479

Perspectives of evolution of legal solutions concerning entrusting by

local self-government units the public tasks to perform with other

entities against the background of Polish law

Assistant professor Wioleta BARANOWSKA-ZAJĄC1

Abstract

On the local self-government units - municipalities, co unties and voivodships -

exercising public administration in Poland on the principle of decentralization of public

authority, there are numerous public tasks to perform, including in particular the own tasks

serving the collective needs of members of local self-government community. These tasks

could be carried out by local self-government units using their own en tities - organizational

units, budgetary establishments, as well as municipal companies cre ated - but could also be

entrusted to perform with other, separate entities, especially non-public entities. The forms

of entrusting by local self-government units the tasks with entities outside self-government

structure are regulated by Polish Act of 1996 on municipal economy. The p rovisions of this

Act were subject to several amendments in the analyzed scope. With entrusting by local

self-government units the public tasks to separate entities, especially non-public entities,

there are connected numero us problems that have not been solved so far. They conce rn the

subjective scope of entities to which it is possible to entrust public tasks by self-government

units, the basis and nature of the entrustment, the scope of entrustment, the legal status of

the entity entrusted with tasks, ob tained as a result of entrusting public tasks, the princip les

on which the entrustment is based, the effects of entrusting, the responsibility for

performing the entrusted tasks. Taking the above into account, the scientific purpose of the

research is an identification and determination of specific problems related to entrusting

the performance of public tasks by loca l self-government units with separate entities,

especially private entities, against the background of Polish law and determination of the

perspectives of evolution of legal solutions concerning such entrusting.

Keywords: local self-g overnment, public tasks, entrusting public tasks, non-public

entities.

JEL Classification: K23

1. Introduction

The local self-government units in Poland - municipalities, counties and

self-government voivodships – exercise public administration on the principle of

decentralization of public authority. They perform numerous public tasks,

including in particular the own tasks serving the collective needs of members of

local self-government community. The tasks of local self-government units could

be carried out by their own entities, which are the organizational units, the

budgetary establishments, as well as the municipal companies created, but could

also be entrusted to perform with entities separate from self-government units,

1 Wioleta Baranowska-Zając - Department of the Law of Local S elf-Government, Faculty of Law and

Administration, University of Szczecin, Poland, wioleta.baranowska-zajac@usz.edu.pl.

464 Juridical Tribune Volume 9, Issue 2, June 2019

including especially non-public entities. The entrustment by local self-government

units the tasks with entities outside self-government structure and the forms of such

entrustment are regulated by the Act of December 20, 1996 on municipal

economy2. Not all tasks performed by local self-government units may be

subordinate to entities from outside the local self-government structure or from

outside the public administration structure. The subject to entrusting with external

entities may only be the tasks in the field of so-called municipal economy.

According to current wording of Article 3 Paragraph 1 of The Act on

municipal economy, local self-government units could, by way of an agreement,

entrust tasks in the field of municipal economy to natural persons, legal persons or

organizational units without legal personality, taking into account the provisions of

the Act of 27 August 2004 on healthcare services financed from public funds3 and

provisions of the Act of 27 August 2009 on public finance4 on general principles or

in accordance with the provisions of:

- the Act of 19 December 2008 on public-private partnership5,

- the Act of 29 January 2004 on public procurement6,

- the Act of 24 April 2003 on public benefit and voluntary work7,

- the Act of 16 December 2010 on public collective transport8,

- the Act of 21 October 2016 on a concession contract for construction

works or services9.

The appointed provision of the Act on municipal economy provides for

contractual entrustment by local self-government units of tasks in the field of

municipal economy to natural persons, legal persons and organizational units

without legal personality. Such an entrustment is a specified way of carrying out a

municipal economy within the meaning of Article 4 Paragraph 1 Point 1 of that

Act10, on the basis of which the constituting bodies of local self-government units

decide on the choice of the manner of carrying out and forms of municipal

economy.

2 The Act of 20 December 1996 on municipal economy, Journal o f Laws of 2019 item 827,

hereinafter: The Act on municipal economy.

3 The Act of 27 August 2004 on healthcare services financed from public funds, Journal of Laws of

2018 item 1510, as amended, hereinafter: The Act on healthcare services financed from p ublic

funds.

4 The Act of 27 August 2009 on on public finance, Journal of Laws of 2019 item 869, hereinafter:

The Act on public finance.

5 The Act of 19 December 2008 on public-private partnership, Journal of Laws of 2017 item 1834, as

amended, hereinafter: The Act on public-private partnership.

6 The Act of 29 January 2 004 on pub lic procurement, Journal of Laws of 2018 item 1986, as

amended, hereinafter: The public procurement Act.

7 The Act of 24 April 2003 on public benefit and voluntary work, Journal of Laws of 2019 item 688,

hereinafter: The Act on public benefit and voluntary work.

8 The Act on 16 December 2010 on public collective transport, Journal o f Laws of 2018 item 2016,

as amended, hereinafter: The Act on public collective transport.

9 The Act on 21 October 2016 on on a concession contract for construction works or services, Journal

of Laws of 2016 item 1920, as amended, hereinafter: The Act on a concession contract for

construction works or services.

10 M. Szydło, Ustawa o gospodarce komunalnej. Komentarz, Wolters Kluwer Lex/el. 2008.